IMPORTANT POINTS
If the order under challenge is based on an application by a party and that party is not impleaded in the revision petition, the revisionalorder would be vitiated.
No Superior court can direct a subordinate court pass a particular order.

JUDGMENT :

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the Complainant against the final judgment and order dated 28.04.2017 passed by the High Court of Judicature for Rajasthan at Jaipur in S.B. Criminal Revision Petition No.477 of 2017 whereby the High Court partly allowed the criminal revision petition filed by respondent Nos.2 and 3 herein and set aside that part of the order dated 19.11.2016 passed by the Sessions Judge, Sawai Madhopur in Session Trial No.44/2016 whereby the Session Judge while allowing the application filed under Section 193 of the Criminal Procedure Code, 1973 (hereinafter referred to as “the Code”) by the appellant (Complainant) issued non-bailable warrants against respondent Nos. 2 & 3 for their arrest.

3. The facts of the case lie in a narrow compass so also the issue involved in the appeal is short. They, however, need mention infra.

4. Two accused, namely, Vimlesh Kumar and Janak Singh are facing trial for the offences punishable under Sections 120-B, 363, 366, 368, 370 (4) and 376 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") read with Section 3/4 and 16/17 of POCSO Act, in Sessions Trial No.44/2016. It is pending in the Court of District and Sessions Judge, Sawai Madhopur. The Sessions trial began pursuant to FIR No.110/2014 filed by the complainant-Madan Mohan (appellant herein) in Police Station, Piloda. A charge sheet has since been filed against two accused mentioned above.

5. The appellant filed an application under Section 193 of the Code in the Sessions Trial complaining therein that the names of respondent Nos.2 and 3 -Ashish Meena and Vimal Meena though figured prominently in all the material documents filed along with the charge-sheet, yet for no justifiable reasons, their names were deleted from the charge-sheet whereas only the names of two accused, i.e., Vimlesh and Janak Singh were retained to face the trial.

6. The appellant, therefore, prayed that respondent Nos.2 and 3 be summoned for being arrayed as accused persons along with Vimlesh Kumar and Janak Singh to face the trial because, according to him, respondent Nos.2 and 3 are also involved in the commission of the offence along with other two accused.

7. The Sessions Judge, by order dated 19.11.2016, allowed the application finding prima facie case against respondent Nos.2 and 3 and accordingly summoned both by issuing non-bailable warrant of arrest against them.

8. Respondent Nos.2 and 3 felt aggrieved and filed Criminal Revision under Section 197 of the Code in the High Court at Rajasthan out of which this appeal arises. The complainant-appellant herein at whose instance the order was passed by the Sessions Judge was, however, not impleaded as party in the revision.

9. By impugned order, the Single Judge allowed the revision in part and set aside that portion of the order of the Sessions Judge which had directed issuance of non-bailable warrant of arrest of respondent Nos.2 and 3 while summoning them. The High Court then proceeded to issue further direction to respondent Nos.2 and 3 to surrender before the Trial Court and move the application for their regular bail, which would be considered and allowed by that Court on the same day on which it is moved. A further liberty was granted to respondent Nos. 2 and 3 to raise the contentions at the time of framing of the charges.

10. It is apposite to quote in verbatim the impugned order:

“1. Heard learned counsel for the accused/petitioners.
2. This Criminal Revision Petition has been preferred on behalf of the accused/petitioners against the order dated 19.11.2016 passed by learned Sessions Judge, Sawai Madhopur whereby the application filed under Section 193 Cr.P.C. by the complainant-Madan Mohan Meena has been allowed and the cognizance for the offences punishable under Sections 363 & IPC and Section 5/6 POCSO Act in the alternative Section 376(2)(g) IPC has been taken against the petitioners, Ashish Meena & Vimal Meena, and they have been called